EM (Lebanon) v SSHD [2008]

EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64

Facts

The woman – referred to only as EM due to reporting restrictions – came to the UK in 2004 with her son (referred to as AF), then aged eight. EM had divorced her husband in Lebanon due to his violent behaviour. The father had been imprisoned for theft and for failing to support AF. EM had sole custody of AF since birth but fled Lebanon due to its Shari’a-based family law that automatically awards fathers (or another male member of his family) physical custody of children from the age of seven. AF had had no contact with his father or with any family in Lebanon.

The Home Secretary, the Asylum and Immigration Tribunal and the Court of Appeal had all ruled that the appellant and her son should be returned to Lebanon and that this would not violate her right to family life under Article 8 of the European Convention on Human Rights – although her right to see her son would be severely restricted it would not be completely denied.

The appellant appealed against the decision of the Court of Appeal.

Held

In a unanimous 5-0 ruling, the appeal was upheld.

The House of Lords ruled that on the particular facts of the case it would be a flagrant denial of the right to respect to family life under Article 8 of the European Convention on Human Rights for the government to remove EM and AF to Lebanon where she would automatically lose custody of him.

The court stressed the exceptional circumstances of the case in determining the right would be completely denied or nullified. AF’s and EM’s right to family life was entirely dependant on each other. There was no family life established in Lebanon. The court discussed the relevant jurisprudence concerning the test of the risk: following from R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 and R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, which (para 15) established that ‘The appellant can only succeed if she can show that the country to which she returns has a flagrant disregard for the rights protected by article 8’. A joint partly-dissenting opinion from a more recent case in Strasbourg was quoted to clarify the definition of ‘flagrant’ as ‘a breach of the principles [of the right] which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article’ (Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537-539).

The court also paid particular attention to the views of AF which had not been put before the Court of Appeal. The hearing before the House underscored the importance of ascertaining and communicating to the court the views of a child such as AF in such a case.

The House of Lords also made clear that it was not the arbitrary and discriminatory character of the rule of Shari’a law regarding a child’s physical custody automatically passing from the mother to the father at age seven (despite that being wholly incompatible with the basic principles underlying the Convention) which, uniquely thus far in the jurisprudence both of Strasbourg and the UK courts, which qualified this particular ‘foreign’ case as one for protection under Article 8. Rather it is the highly exceptional facts of the case which in combination provided utterly compelling humanitarian grounds against removal.

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